Citation NR: 9627261
Decision Date: 09/27/96 Archive Date: 10/03/96
DOCKET NO. 93-05 378 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in New
Orleans, Louisiana
THE ISSUE
Entitlement to an increased rating for a left knee
disability, currently rated as 30 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
M. Bradican, Associate Counsel
INTRODUCTION
The veteran served on active duty from May 1970 to May 1973,
and again from October 1976 to September 1977. His second
period ended in a discharge under other than honorable
conditions and cannot be considered for VA purposes.
This case arises before the Board of Veterans’ Appeals
(Board) on appeal from a rating decision of January 1992,
from the New Orleans, Louisiana, Regional Office (RO) of the
Department of Veterans Affairs (VA).
It is further noted that the veteran was subsequently denied
an earlier effective date for the disability rating assigned
for his psychiatric disorder. However, since no formal
substantive appeal has been filed, the Board has no
jurisdiction to adjudicate that issue on appeal.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends, in essence, that his left knee
disability warrants an evaluation in excess of the 30 percent
rating currently assigned. He specifically contends that he
has pain when standing for 20 minutes or more, and when
walking farther than three blocks or up stairs.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against his claim for an increased rating for a
left knee disability.
FINDINGS OF FACT
1. All evidence necessary for an equitable disposition of the
veteran's claims has been developed.
2. The veteran’s left knee disability is manifested
primarily by complaints of pain when walking farther than 3
blocks, standing longer than 20 minutes, walking up stairs,
and lifting objects. Neither left knee ankylosis, nor
limitation of leg extension to 30 degrees are objectively
shown.
3. Neither an exceptional nor unusual disability picture has
been demonstrated so as to render impractical application of
the regular schedular standards with regard to the veteran's
left knee disability.
CONCLUSION OF LAW
The criteria for an increased rating above 30 percent for a
left knee disability have not been shown. 38 U.S.C.A. § 1155
(West 1991 & Supp. 1995); 38 C.F.R. § 3.321(b)(1), Part 4,
Diagnostic Codes 5256, 5257, 5261 (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Initially, the Board finds that the veteran’s claim is “well
grounded” within the meaning of 38 U.S.C.A. § 5107(a) (West
1991); that is, he has presented a claim that is plausible.
He has not alleged that any records of probative value that
may be obtained and which have not already been associated
with his claims folder are available. The Board accordingly
finds that the duty to assist him, as mandated by 38 U.S.C.A.
§ 5107(a) (West 1991), has been satisfied.
A review of the veteran’s service medical records indicates
that he twisted his left knee jumping down from a gamma goat
(an airborne tactical vehicle) in March 1972.
In April 1972 he was diagnosed with a possible meniscus tear.
In April 1978 the RO granted service connection for a left
knee disorder, and assigned a rating of noncompensable. An
arthroscopy was performed in July 1985. A tear of the
posterior horn of the medial meniscus was found. The
detached fragment was bent back under the rest of the
meniscus. The torn portion was excised and the remainder of
the meniscus was moved out without complications. Following
the arthroscopy, a rating of 10 percent disabling was
assigned via a rating decision of November of 1985. In a
January 1992 rating decision the RO increased the rating to
30 percent upon a showing of instability of the left knee
with positive Lachman’s and positive anterior drawer.
Disability evaluations are based upon the average impairment
of earning capacity as contemplated by a schedule for rating
disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part
4 (1995). The severity of a left knee disability is
determined, for VA rating purposes, by application of the
provisions of Parts 3 and 4 of the Code of Federal
Regulations, and in particular 38 C.F.R. §§ 4.10, 4.40, 4.45,
4.59, 4.71a, and Diagnostic Codes 5256, 5257, 5261 (1995) of
the VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4
(1995).
It is recognized that disability of the musculoskeletal
system is primarily the inability, due to damage or an
infection in parts of the system, to perform the normal
working movements of the body with normal excursion,
strength, speed, coordination, and endurance. Weakness is as
important as limitation of motion, and a part which becomes
painful on use must be regarded as seriously disabled. 38
C.F.R. § 4.40 (1995). Functional impairment due to pain must
be considered. 38 C.F.R. § 4.59 (1995).
The veteran's left knee disability has been rated under the
provisions of Diagnostic Code 5257; 38 C.F.R. § 4.71(a)
(1995). That diagnostic code provides a maximum 30 percent
evaluation where there is severe recurrent subluxation or
lateral instability of the knee. There is no rating above 30
percent under this diagnostic code.
In order to merit a rating in excess of 30 percent for his
left knee disability, the veteran must demonstrate either
ankylosis of the knee in flexion between 10 and 20 degrees,
under Diagnostic Code 5256; or limitation of leg extension to
30 degrees, under Diagnostic Code 5261.
The most recent medical evaluations, VA outpatient treatment
reports, from January through October 1991, show that the
veteran was evaluated for complaints of left knee pain. The
impression was slight arthritis. Instability of the left
knee continued with positive Lachman’s and positive anterior
drawer sign. Knee reconstruction surgery was suggested to
the veteran, but he wished to wait until he had more sick
leave available. The veteran was wearing a knee brace which
gave minimal relief, and he was taking pain medication.
These reports are negative for ankylosis of the left knee.
They are also negative for limitation of motion of the left
knee. The veteran’s subjective complaints do not indicate
that the knee is ankylosed in flexion between 10 and 20
degrees, or that there is limitation of leg extension to 30
degrees so as to warrant a rating in excess of 30 percent.
Neither the subjective, nor objective, evidence indicates
that a rating in excess of the currently assigned 30 percent
would be appropriate.
Based upon the foregoing, the Board finds that an evaluation
in excess of 30 percent for the veteran's left knee
disability is not appropriate. There is no equipoise between
the positive and negative evidence, therefore no reasonable
doubt issue is raised. 38 C.F.R. § 3.102 (1995).
The schedular evaluations are adequate to compensate the
veteran's left knee disability. This is not an exceptional
case where the schedular evaluations are shown to be
inadequate. It does not present an exceptional or unusual
disability picture with such related factors as marked
interference with employment or frequent periods of
hospitalization as to render impractical the application of
the regular schedular standards. 38 C.F.R. § 3.321(b)(1)
(1995).
ORDER
Entitlement to an increased rating for a left knee
disability, currently rated at 30 percent, is denied.
JOAQUIN AGUAYO-PERELES
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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